The politics of poverty: elites, democratic governance and constitutional oversight 

Forced to depend on Executive goodwill and lacking financial autonomy, constitutional commissions and independent offices have been forced, since day one, to act in subservience

By NLM Writer

Through Article 249 of the Constitution of Kenya, 2010, the framers had high ambitions for the constitutional commissions and independent offices (CCIOs).

As such, in their wisdom, they charged the CCIOs with high responsibilities spelt out in Article 249(1) (a, b, c): protect the people’s sovereignty, secure observance by all State organs of democratic values and principles, and promote constitutionalism.

Article 249(2) states that the framers deemed it fit to protect the CCIOs from influence. As such, the CCIOs were only to be subject to the constitution and were independent and not subject to direction or control by any person or authority.

It is a very ambitious way to oversee state organs. Yet, it seems the framers overlooked something very critical for the smooth operation of the CCIOs – the financial independence of the commissions and offices.

CCIOs wholly rely on the national Treasury for their funding; for that, they have become paper tigers that are outwardly powerful or dangerous but inwardly weak and ineffectual. 

In fact, they have often been treated as subservient institutions and mere appendages of the executive.

The Treasury and Parliament have, in the decade’s existence of the CCIOs, allocated budgets that are just enough to pay salaries, rent, and other operational requirements but very little or nothing at all for programmes.

Only the judiciary has the Judiciary Fund, which somehow guarantees them some financial independence, though not much. A similar fund for the Independent Electoral and Boundaries Commission (IEBC) has never taken off because the executive through parliament has not made that possible.

Meanwhile, at the National Land Commission (NLC), the Cabinet Secretary for National Treasury has, over the years, refused to appoint the Chief Executive Officer as a Collector of Taxes, which would enable the Commission to generate revenue through Appropriations-In-Aid. Instead, the Ministry of Lands, Housing, and Urban Development continues to collect revenue NLC would otherwise collect. 

Despite many appeals by the NLC through parliament for the CS National Treasury to appoint its CEO as Collector of Taxes, nothing seems to change. 

Being at the mercy of the National Treasury and, therefore, the presidency, CCIOs have thus lost their independence, and rather than be subject to the constitution, they constantly receive directions from the executive. Some have even accepted their places unashamedly and actively do the Executive’s bidding.

The best funding model for CCIOs would have been similar to what counties get. That is, a certain percentage of the audited revenue should have been ring-fenced for the commissions and independent offices to ensure that the executive does not cripple them financially and that they do not perform their constitutional functions. 

The constitution sets aside at least 15 percent of the last audited revenue to go to counties. In the next financial year, 2023/24, already the counties are assured of KSh385 billion to be distributed among them using the formula set by the Commission on Revenue Allocation (CRA).

If the constitution had set aside just 5 percent of the revenue to go to CCIOs, the commissions and independent offices would be looking at possibly more than KSh100 billion to be distributed amongst the 21 of them, guaranteeing each at least KSh3 billion.

Yet, as it stands, the Treasury has allocated some CCIOs less than a billion for the entire year.

Over time, budget allocation to CCIOs has instead been based on two factors: the significance of a commission or office in the eyes of the executive. Significance means the extent to which the commission or office panders to the executive’s whims. For instance, the Public Service Commission (PSC), which facilitates the Executives’ desire to create offices and hire ‘consultants’ on supernormal salaries, will likely be looked upon favourably during budget making.

Those that do not facilitate executive whims and are often ready to criticise the government excesses, like the Kenya National Commission on Human Rights (KNCHR), the Commission on Administrative Justice (CAJ), and the Office of the Auditor General are allocated just the bare minimum, what livestock experts call maintenance ratio as opposed to production ratio. Others in this category include NLC, which for many years has had fights with the Ministry of Lands, Housing and Urban Development over functions, with the latter making every effort to claw back some functions, even ones expressly given to the Commission by the constitution. As a result of these fights, NLC finds itself in the bracket of ‘opposition’ commissions and offices.

The battles between NLC and the Ministry were fierce when Charity Ngilu was the Cabinet Secretary for lands in former President Uhuru Kenyatta’s first term. It ended up with the Supreme Court delivering an advisory opinion regarding the respective mandates of the commission and the ministry.

The second factor determining budgetary allocation to CCIOs is who heads the commission or office. Former politicians at the apex of the CCIOs have often been lucky in accessing and lobbying the National Treasury to allocate them more money. 

Strong characters who were the inaugural heads of the commissions and offices, such as Dr Mohammed Swazuri, Dr Otiende Amollo, Micah Cheserem, and Edward Ouko, among others, all left, and their replacements were largely political allies, friends, and family members of the former Jubilee administration. 

It is little wonder that independent officeholders publicly state that they were coerced to do certain things. For instance, the outgoing Director of Public Prosecutions, Noordin Haji, in October 2022 claimed that the former Director of Criminal Investigations (DCI), George Kinoti pressured him through the media to charge current Deputy President Rigathi Gachagua.

“On DP Gachagua’s charges, the decision was made on the threshold. We were pushed by DCI himself through the media. We felt there was sufficient evidence to charge, but later we discovered the documents were forged,” he said in an interview with KTN in October 2022.

In March 2023, it was the turn of the Controller of Budget Margaret Nyakang’o to make similar claims of being coerced to approve withdrawals of cash amounting to more than Sh15 billion by former Treasury Cabinet Secretary Ukur Yattani.

In commissions where commissioners go out to lobby, they are often lucky to get a few more tens of millions in their budgets. It is the opposite in situations where the Commissioners have left the lobbying to their secretariats.  

The May 15, 2020, decision by the Supreme Court that recommendations by CCIOs were not binding on parliament further diminished the influence and pre-eminence of constitutional commissions and independent offices.

The Council of Governors (CoG) sought the advisory opinion after the National Assembly and the Treasury allocated counties Sh310 billion as equitably shared revenue instead of KSh335 billion in line with the recommendation of the Commission on Revenue Allocation.

“Taking all these into account, it is our considered opinion that the recommendations by the Commission on Revenue Allocation are not binding upon either the National Assembly or the Senate. To hold otherwise, would elevate the Commission above Parliament in the legislative chain… it could not have been the intention of the makers of the Constitution to supplant the legislative authority of Parliament in matters of Finance by establishing the Commission on Revenue Allocation,” the Supreme Court by majority stated in the advisory opinion.

Since most CCIOs perform advisory roles, it means that their recommendations will not be taken seriously, and therefore their budget also suffers.  

Though there seemed to be a general consensus that the 2010 constitution was not a perfect document even as Kenyans voted for it in the referendum, not much, if any, was said about the funding of constitutional commissions and independent offices.

Even during the ill-fated pursuit to amend the constitution through the Building Bridges Initiative (BBI), the issue of ring-fencing the funding of CCIOs never came up.

In the meantime, the CCIOs have become toothless – all bark and no bite. Most chairs and commissioners would not lift a finger to criticise the government but also avoid going to the National Treasury to lobby for more funds.

At the end of the day, the Kenyan whom the commissions and offices were to protect has more or less lost faith in the CCIOs, which have chosen to remain invisible and inaudible for fear of upsetting the Executive whom they are supposed to oversight, for the executive carries the purse which it employs as a carrot or stick depending on the occasion.

The framers may now look back with regret for failing to protect the commissions and independent offices.